A dangerous technical argument against Hobby Lobby

It’s bad enough when a court decision deprives of us liberty or fails to remedy a deprivation wrought by the State. But it’s particularly galling when a court takes away liberty through a technicality. Unfortunately, that route often tempts a judiciary too sheepish to base indefensible outcomes on substantive grounds.

In the Hobby Lobby case discussed by Scott earlier this morning, the substantive issue before the Supreme Court is the validity of an Obamacare rule requiring employers to provide health care plans for their employees that cover birth control and abortion procedures that violate the employer’s sincerely held religious-based beliefs. But there is a threshold technical issue — whether a corporation like Hobby Lobby has any religious freedom rights under the First Amendment.

I find the claim that owners of a company like Hobby Lobby can be forced to violate their religious beliefs simply because they have chosen to incorporate to be laughable (though not funny). Can you imagine the owner of a business telling his priest, minister, or orthodox rabbi that he’s not the one violating religious tenets by paying for abortions or staying open for business on the Sabbath; the corporation he controls is the culprit? The priest, minister, or orthodox rabbi would not be impressed. Neither would the Good Lord.

Jay Sekulow offers three reasons why corporations must have religious freedom. First, as the paragraph above suggests, corporations may have an independent legal existence but they are formed, staffed by, and act through individuals. As Sekulow explains:

A corporation’s expression is the expression of the people who work for it and lead it. The law recognizes this reality when it holds corporations liable for the acts of the individuals who work for it, so long as those individuals act within the scope of their employment.

When you allow an organization to speak, people speak. When you censor an organization, you censor people.

Second, when you restrict corporations First Amendment rights, you are restricting a vast amount of the speech and other forms of expression that we take for granted as being free from government mandates and control.

What’s a movie? Corporate expression. A television show? Corporate expression. What about hospital policies regarding end of life care or abortion? Corporate expression.

Third, if the Supreme Court rules against Hobby Lobby, in what sense will “private enterprise” ever again be truly “private?”

If the United States government can force the people running a corporation to use corporate resources to provide free abortion-pills to employees (especially when contraceptives are cheap and widely available on the open market), it is difficult to imagine the meaningful limits on government power in the marketplace. . . .

If government can regulate when it pleases, however it pleases, regardless of the strength of the owner’s convictions or the weakness of the government’s interests, then does anyone truly own a business any longer?

Thus, to deprive Hobby Lobby of its religious freedom based on the technicality of its corporate status arguably would do even more substantive damage than if the Court reaches the merits of the First Amendment claim. No doubt, the Obama administration would love that result.